Aviva Insurance Company sought to retract its notice of abandonment of appeal regarding its duty to defend and indemnify CarePartners following a cyberattack and subsequent class action.
Aviva's initial application was dismissed, leading to their appeal and subsequent abandonment due to strategic considerations.
Upon realizing the respondent's cross-appeal might argue res judicata and issue estoppel against Aviva's new application for cost allocation, Aviva sought to reinstate its appeal.
Key Points:
Aviva abandoned the appeal believing the application judge’s decision on bodily injury claims wouldn't be overturned and the potential recovery was minimal.
CarePartners proceeded with its cross-appeal, challenging the validity of Aviva’s new application on the grounds of res judicata and issue estoppel.
The Court of Appeal found no inadvertence or mistake in Aviva’s abandonment decision, emphasizing the importance of finality in legal proceedings.
Outcome:
The Court of Appeal dismissed Aviva’s motion to set aside the notice of abandonment, stressing the deliberate nature of Aviva's decision to abandon the appeal.
The respondent’s motion for directions was granted with specific time limits to be set by the Appeal Scheduling Unit.
Aviva was ordered to pay CarePartners $3,000 in costs for the motion.
